Michigan’s Freedom of Information Act helps citizens hold their government accountable. The law grants the public access to records, documents, correspondence and other information created or used by any public entity. It is a fundamental element of a democratic system of government, enabling voters to inform themselves about how their government is run and how their tax dollars are used. There are countless examples of Michigan citizens using FOIA to unearth corruption, save taxpayers from boondoggles and expose illegal behavior by government officials or employees.
Despite this, Michigan’s FOIA law needs to be reformed so that citizens can more effectively hold their governments accountable. The current state of the law suffers from three major problems that unjustifiably limit the public’s access to government records.
One problem is excessive fees. Public officials may charge fees for the cost of processing a request under FOIA. This provision of the law is meant to ensure that complying with FOIA does not become an undue financial burden on government entities. But public officials frequently charge citizens inordinate amounts of money to respond to FOIA requests.
They regularly overestimate the time and minimum costs needed to process a request, which leads to charges of thousands of dollars.[*] Ordinary citizens are often unable to afford these costs. Challenging the estimated costs in court often requires spending thousands in legal fees. The result is that many otherwise valid requests are withdrawn due to excessively high costs.
Inappropriate and lengthy delays are another common problem with FOIA. The law, in theory, requires public officials to produce records in a timely manner. In practice, however, government bodies can take months to process routine and simple FOIA requests.
FOIA enables these long delays because it requires only that public bodies respond to a request within a set period. There is no deadline, however, for when governments must produce and deliver the requested records. Instead, public bodies set their own nonbinding estimates for how long they will take to fulfill a request. This affords officials the opportunity to delay releasing time-sensitive material. If officials believed, for instance, that disclosing some records would negatively impact their agency, they could delay releasing those records until they are less relevant or useful.
The timelines self-imposed by public bodies can only be challenged when they are considered unreasonable.[†] But there are few good options: either appeal to the same public body that issued the estimate or pursue costly and lengthy litigation. Even if these appeals are successful, the records involved would still have been effectively delayed from disclosure for months or even years.
A third problem is excessive use of redactions. FOIA permits certain information contained within public records to be redacted or withheld from disclosure. Many of these redactions are well-intentioned and would not be objectionable if applied properly. Unfortunately, public bodies throughout Michigan are overly broad in their use of redactions.
The result is that documents are regularly redacted or withheld to the point of rendering them useless. Excessive use of redactions makes it easier for public bodies to hide what could be very important information — such as evidence of their own malfeasance or corruption — from public view. Once again, the remedy for inappropriate redactions is either to appeal to the public body that made those redactions or to spend thousands in court.
Excessive fees, inappropriate delays and broad redactions are not the only problems preventing FOIA from providing meaningful transparency. Over the years, numerous amendments and legal interpretations have created several loopholes in the law.[‡] Lawyers and FOIA experts can navigate these loopholes, but they make it more difficult for ordinary citizens to obtain the information they seek. This undermines the core purpose of FOIA.
The Mackinac Center comprehensively reviewed Michigan’s entire FOIA statute.[§] Identified here are the precise amendments to FOIA that would fix the aforementioned issues and more, ensuring that Michigan citizens have better access to information about their governments. Lawmakers seeking to reform FOIA can use this review as a guide to improve the law and make the government of Michigan more accountable to its citizens.
This policy brief presents each section of Michigan’s FOIA law. It offers suggested edits to the law, including the exact statutory language that would fix its current problems. Language that should be removed is stricken, and language that should be added is underlined. Explanations of the proposed changes are provided in comments at the end of each section.
[*] The Michigan State Police once charged the Mackinac Center almost $7 million to respond to a FOIA request. Kathy Hoekstra, “FOIA: One Word Makes a $7 Million Difference” (Mackinac Center for Public Policy, March 31, 2010), https://perma.cc/8E26-BKSE.
[†] For example, see “Opinion No. 7300” (Michigan Attorney General, Dec. 12, 2017), https://perma.cc/YT7U-QC2K. It should be noted, however, that whether the estimated date of production is “reasonable” is a matter of interpretation. It is only limited by a time estimate for production that “contemplates the public body working diligently to fulfill its obligation to produce the records to the requestor.”
[‡] That’s not counting carve outs that were intentionally part of the law, such as exempting the Legislature and the governor from FOIA.
[§] This study is an outgrowth of work performed by the Mackinac Center, the Michigan Coalition for Open Government, the Michigan Press Association and the American Civil Liberties Union of Michigan. The Mackinac Center thanks these groups for their significant contributions to the work that inspired this study.